Citation NR: 9710271
Decision Date: 03/27/97 Archive Date: 04/02/97
DOCKET NO. 95-24 307 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an increased rating for a left knee disorder,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. J. Janec, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1942 to
November 1943.
This matter comes before the Board of Veterans’ Appeals
(Board) from a June 1995 rating decision of the Pittsburgh,
Pennsylvania Regional Office (RO) of the Department of
Veterans Affairs (VA) which granted an increased 20 percent
disability rating for a left knee disorder. The veteran
continued his appeal.
It appears the veteran may be raising a claim for service
connection for a back disorder as secondary to his left knee
disorder. This issue has not been certified for appeal and
will not be addressed herein. It is referred to the RO for
appropriate development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his left knee disorder is severe
enough to warrant an evaluation higher than 20 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
grant of a 30 percent rating for the veteran’s left knee
disorder.
FINDINGS OF FACT
1. All relevant evidence needed for an equitable disposition
of the veteran’s appeal has been obtained.
2. Symptoms associated with the veteran’s left knee disorder
are characteristic of severe knee disability; the knee is not
ankylosed, nor is there limitation of extension at 40 degrees
or more.
CONCLUSION OF LAW
A 30 percent rating is warranted for the veteran’s service-
connected left knee disorder. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 1996); 38 C.F.R. §§ 3.102, 4.7, 4.40,
4.45, 4.71a, Diagnostic Codes 5256, 5257, 5261 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
that a service-connected disability has increased in
severity, the claim is well grounded. Proscelle v.
Derwinski, 2 Vet.App. 629 (1992). The Board is also
satisfied that all relevant facts for the veteran’s claim
have been properly developed and there is no further
assistance required in order to comply with the duty to
assist mandated in 38 C.F.R. § 5107. Littke v. Derwinski, 1
Vet.App. 90 (1990).
I. Factual Background
Service medical records demonstrate that the veteran
aggravated a previous left knee injury during a training
exercise. As a result, he was discharged from service.
Service connection for a left knee disorder was granted in
November 1943 and it was rated 10 percent disabling. On
examination in December 1946, his residuals were found to be
minimal and the RO rated his disability noncompensable.
The veteran filed a claim for an increased rating in August
1991, and by rating decision of December 1991, the RO
increased the rating to 10 percent. The veteran filed
another claim for an increase in January 1995 as his knee
continued to worsen.
On VA examination in March 1995, the veteran reported that he
injured his knee on the obstacle course. He was hospitalized
for two months with torn cartilage and discharged from the
service. He continued to have pain and occasional
instability in the knee, and he reinjured it in October 1994
when it gave out on him. He complained of constant pain and
swelling in the left knee joint. Examination showed swelling
and deformity of the left knee, with definite lateral
instability. Range of motion was reported to be flexion to
95 degrees and extension to 0 degrees. X-rays showed
traumatic arthritis. The medial adjacent articular surfaces
were reported to be extremely irregular and narrowed.
Osteophytosis was found in both knees, but was more severe in
the left. Changes were also noted in the tibiofemoral joint
and the patellofemoral joint, with fragmentation along the
medial aspect of the tibiofemoral joint adjacent to the
medial tibial spine and possible chondrocalcinosis. Spur
formation was seen in the medial margin, the tibial spines
and the superior and inferior margins of the articular
surface of the patella. Swelling and deformity of the left
knee with limitation of motion, post traumatic arthritis and
effusion was diagnosed.
A notation from Dr. Bertrand L. Stolzer dated in June 1995
reported that the veteran’s disability had increased in
severity. He indicated that the veteran had difficulty
walking up and down steps and hills, that he walked with a
limp, and often used a cane. X-rays showed severe
osteoarthritis of the left knee with varus deformity, marked
medial compartment narrowing, spurring in the femoral and
tibial areas and severe patellofemoral osteoarthritis.
Severe post traumatic degenerative joint disease of the left
knee was diagnosed. Dr. Stolzer stated that the findings
were long standing and that the veteran had increased
difficulty with activities of daily living.
Based on the evidence of record, a 20 percent disability
rating was granted by the RO in June 1995. The veteran
continued his appeal.
At his personal hearing in December 1995, the veteran
testified that his left knee disorder had worsened. He
reported constant pain, especially when walking up and down
hills and steps, which he managed with ibuprofen. He
indicated that he had noticed a decrease in range of motion,
as well as swelling, frequent instability and dislocation.
He walked with a cane to help maintain his balance and he
wore an elastic sock on his knee. Extended walking caused
pain, and he had difficulty squatting and performing
household chores. He currently worked about one day a week.
He reported that a knee replacement was recommended.
A follow-up report from Dr. Stolzer dated in August 1995
reiterated his previous findings regarding the veteran's left
knee disorder and further reported evidence of secondary
chondrocalcinosis. He indicated the left knee was enlarged
and deformed and the joint was unstable. He opined that the
veteran was a candidate for a knee replacement.
II. Analysis
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155. Although the regulations
require that, in evaluating a given disability, that
disability be viewed in relation to its whole recorded
history, 38 C.F.R. §§ 4.1, 4.2, 4.41, where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, it is the present level of
disability which is of primary concern. Francisco v. Brown,
7 Vet.App. 55 (1994).
In evaluating the veteran’s request for an increased rating,
the Board considers the medical evidence of record. The
medical findings are then compared to the criteria set forth
in the VA’s Schedule for Rating Disabilities. An evaluation
of the level of disability present must include consideration
of the functional impairment of the veteran’s ability to
engage in ordinary activities, including employment, and the
effect of pain on the functional abilities. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59. Furthermore, the Court has held
that the VA must consider the applicability of regulations
relating to pain. Quarles v. Derwinski, 3 Vet.App. 129, 139
(1992); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1993);
Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). Under
the regulations, the “functional loss due to pain is to be
rated at the same level as the functional loss when flexion
is impeded.” Schafrath at 592.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like. 38 C.F.R. § 4.40.
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations:
(a) Less movement than normal (due to ankylosis, limitation
or blocking, adhesions, tendon-tie-up, contracted scars,
etc.).
(b) More movement than normal (from flail joint, resections,
nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or
injury of peripheral nerves, divided or lengthened tendons,
etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled
movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of
disuse.
Instability of station, disturbance of locomotion,
interference with sitting, standing and weight-bearing are
related considerations. 38 C.F.R. § 4.45 (1996).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Additionally, the Court has
held in DeLuca v. Brown, 8 Vet.App. 202, 206 (1995), that
38 C.F.R. § 4.40 does not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use.
The veteran’s left knee disorder was previously rated under
Diagnostic Code 5263 for genu recurvatum, but is currently
rated under Diagnostic Code 5257 for knee impairment.
Moderate subluxation or lateral instability is assigned a 20
percent disability rating. If severe, a 30 percent
disability rating is assigned. Diagnostic Code 5257.
Ratings are also provided for limitation of motion of the
leg. A rating in excess of 30 percent is warranted when the
knee is ankylosed at 10 degrees or more or when extension is
limited at 30 degrees or more. Diagnostic Codes 5256, 5261.
Leg extension limited to 30 degrees, and flexion limited to
15 degrees warrant a 40 percent disability rating. Full
range of motion of the knee is measured from 0 degrees to 140
degrees in flexion and extension. 38 C.F.R. § 4.71, Plate
II.
The evidence of record establishes that the veteran’s
disability warrants an increased rating. The veteran
reported that he had increased swelling and constant pain in
the left knee. He also reported that he currently walked
with a cane and wore an elastic sock on his left knee. Dr.
Stolzer reported that the veteran's knee impairment had
increased in severity and that he was a candidate for a knee
replacement. His disability has also impacted on the
veteran's ability to perform daily activities and to work. We
have carefully considered the veteran’s complaints of pain
and instability, and the objective findings on examination
discussed above, including the findings of pain, swelling,
deformity, effusion, limitation of motion, and osteoarthritis
of the left knee. We find that the symptoms exceed what
would be classified as moderate impairment, and with the
resolution of any remaining doubt in the veteran’s favor, and
with consideration of 38 C.F.R. §§ 4.7, 4.40, the level of
the veteran’s disability may be considered to more nearly
approach the level of severe. Hence, an increased 30 percent
rating is warranted on this basis. We do not find that the
objective symptoms show that the knee is ankylosed or that
extension is limited to 30 degrees or flexion limited to 15
degrees, even with consideration of the factor of pain.
Hence, a rating in excess of 30 percent is not warranted.
See 38 C.F.R. §§ 4.7, 4.21, 4.71a, Diagnostic Code 5257;
DeLuca, id.
ORDER
A 30 percent rating for the veteran’s left knee disorder is
granted, subject to the regulations governing the payment of
monetary awards.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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